trends in workplace health and safety in asia pacific in workplace health and safety in asia pacific...
TRANSCRIPT
Trends in Workplace Health and Safety
in Asia Pacific
Wednesday, August 23, 2017
(Aug 22nd in North and South America)
Moderator
Peter WaltsChief Operating OfficerEmployment Law AllianceGlobal
Audio
Questions and Tech Support
Speakers
Carl Blake
Simpson Grierson
Auckland, New Zealand
+64 9 977 5163
Marie Costa
Corrs Chambers Westgarth
Melbourne, Australia
+61 3 9672 3000
Jenny Tsin
Wong Partnership
Singapore
+65 6416 8110
Vivien Yui
Wong Partnership
Singapore
+65 6416 8110
Cynthia Chung
Deacons
Hong Kong
+852 2825 9297
Reena Enbasegaram
Shearn Delamore & Co.
Kuala Lumpur, Malaysia
+603 2027 2727
Atul Gupta
Trilegal
Bangalore, India
+ 91 80 4343 4646
Marie CostaAustralia
Statutory regime in Australia
• The Commonwealth, states and territories
are responsible for regulating and enforcing
the laws in their jurisdictions with respect to
work health and safety (WHS).
• Model WHS laws have been implemented
in all jurisdictions, except Victoria and
Western Australia.
Objective of WHS laws
• The WHS laws provide a framework to
protect the health, safety and welfare of all
workers at work and of other people who
might be affected by the work.
• Key duty holders include persons
conducting a business or undertaking
(employers), workers and officers.
Offence Provisions
• WHS laws are enforced by national and
state-based regulators. Suspected
breaches of the legislation are also
investigated by relevant national and state-
based regulators.
• Contraventions are criminal offences and
attract penalties such as fines and
imprisonment.
• Category 1 offences are classed as the
most serious.
• Although the laws became operative in most
jurisdictions five years ago, we had not seen
any Category 1 prosecutions until recently.
• In the last 12 months, Category 1
prosecutions has been initiated in New
South Wales, Queensland and South
Australia.
Model WHS laws - Category 1 offences
• There has been a marked increase in the
level of fines imposed for breaches of WHS
legislation across Australia.
• The principal sentencing consideration is
general deterrence.
Rising penalties across Australia
Carl BlakeNew Zealand
Director responsibilities – due diligence
1. Keep up to date with health and safety matters
2. Understand the nature of the business and its hazards and risks
3. Ensure the business has appropriate resources and processes to eliminate or minimise risks to health and safety
4. Ensure there are appropriate reporting and investigation processes in place
5. Monitor that these processes are in place
6. Verify
Enforceable undertakings
• Alternative to prosecution for H&S breaches – avoid conviction
• Purpose is to benefit:– workers in the workplace;
– wider industry or sector; and/or
– the community
• Party giving undertaking must take responsibility and accountability – but not a guilty plea
• Case of St Kentigern College – Sweeney Todd
WorkSafe’s position on critical risks
WorkSafe wants NZ organisations to determine their critical risks and ensure they have the necessary controls in place
It is looking for:• Evidence based targeting of critical
risks• Targeted interventions to address
key harm drivers• Influencing practice and
behavioural change
Jenny Tsin Vivien YuiSingapore
A Singapore Perspective to WSH
Key Legislation
Workplace Safety & Health Act (WSHA)
• Covers all workplaces in Singapore
• Aims to inculcate good safety habits and practices in all
individuals at workplaces
• 3 guiding principles:
– Strengthening industry ownership of workplace safety
and health outcomes;
– Ensuring sufficiently high penalties to deter non-
compliance;
– Requiring stakeholders to eliminate and reduce risks at
their source.
Proposed amendments to WSHA
• In order to improve WSH performance, the following
amendments to the WSHA have been proposed:
(1)Public release of incident learning reports
• This proposed change would allow the Commissioner for
WSH to publicise an incident learning report with detailed
investigation findings, including the root causes and
associated recommendations, at any time/manner he thinks
fit (including before legal action is taken against any party
under investigation). This would help to prevent recurrence of
similar incidents.
• To address the concern that the report may prejudice an
accused’s position, the report would be inadmissible in any
legal proceedings, and be solely for learning purposes.
Proposed amendments to WSHA
(continued…)
(2) Increasing maximum fines for breach of subsidiary legislation
• This proposed change increases the maximum fine for breaches
of WSHA subsidiary legislation from $20,000 to $50,000.
• The new maximum penalty will only be applied to the most
serious offences under WSHA subsidiary legislation, i.e. offences
that could result in death, serious injury or dangerous
occurrences. The government does not intend to increase the
penalties for other offences under WSHA subsidiary legislation.
WSH 2018 Plus
• A plan to achieving sustained improvements in
Workplace Safety and Health performance
• Support by Tripartite Partners – Ministry of Manpower,
Singapore National Employer’s Federation and the
National Trade Union Congress
• National strategy to improve workplace safety and health
in Singapore.
• Vision: “A safe and healthy workplace for everyone; and
a country renowned for best practices in workplace
safety and health”.
Enforcement Philosophy
• Proactive risk based approach taken in
inspections, to enforce WSHA
– Inspections used in conjunction with
prosecutions.
– Purpose of inspections is to ensure effective
safety management system at work and that
employers comply with that system even before
any accident takes place.
Enforcement Philosophy
• Zero tolerance towards contravention:
– In first half of 2017, 41 cases of
persons/companies convicted under WSHA for
fatal workplace accidents.
• Maximum fine imposed $400,000 on a
corporation
• 4 weeks’ imprisonment imposed on a
supervisor for endangering safety / health of
himself/others
Reena EnbasegaramMalaysia
OCCUPATIONAL SAFETY AND
HEALTH ACT 1994
• Aims of the act
• Application – as part of the t & c
• Breach of the act – case studies
OTHER APPLICABLE LEGISLATION
• WORKMEN'S COMPENSATION ACT
1952
• EMPLOYEES' SOCIAL SECURITY ACT
1969 (SOCSO)
CURRENT TRENDS
• Impact of a Foreign workforce
• Mental Health / Presenteeism
• Workplace health / Wellbeing programmes
• Point 1
• Point 2
• Point 3
• Point 4
Title
Cynthia ChungHong Kong
Recent statistics and authority’s attitude in
minimizing work related injuries/diseases
2015 No. of Cases
2016No. of Cases
Percentage change in figures
(A) IndustrialAccidents
11,497 10,883 -5.3%
(B) Occupational Injuries
35,852 35,768 -0.2%
(c) Confirmed OccupationalDiseases
256 (Including monauralhearing loss)
334(Including monauralhearing loss)
+30.5%
Highlight of Legal Requirements for Work place
Health and Safety in Hong Kong
• Compulsory Employees’ Compensation Insurance for work related injuries/diseases
• Occupational Safety and Health Ordinance : “Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employees.”
• Occupational Safety and Health Regulation
• Display screen equipment regulation
• Factories and Industrial Undertaking Ordinance
Civil Liability for employers regarding
occupational stress
• Psychiatric injury suffered by workers due to occupational stress/harassment/victimisation has not been the subject of claims by workers in Hong Kong.
• Position may change in view of the increase in such actions in the UK - Barbar v Somerset County Council
-Overall test: reasonable and prudent employer in light of what he knew or ought to have known.
• Foreseeability of psychiatric injury will be the main determinant in occupational-stress claims against an employer.
• Even if civil claims are not common in Hong Kong, the employees suffering from psychiatric injury are still protected by Disability Discrimination Ordinance.
Atul GuptaIndia
Constitutional Perspective: Enshrined in the Directive Principles of State Policy, The
Constitution of India (Art.39(c), Art. 41 and Art. 43) – To strengthen the health and strength of
workers and secure just and humane conditions of work.
Supreme Court: Right to health and medical aid to protect the health and vigor of a worker is
a fundamental right under Article 21.
Specific Statutes
Factories Act and Mines Act:• Provide for prevention of occupational hazards, creating safe and healthy conditions of work
in factories and mines.
• Extensive provisions dealing with ventilation, fencing of machinery, waste treatment,
overcrowding, and other welfare provisions like provision of canteens, crèche’s, etc.
Shops and Commercial Establishments Act:• Enacted by each Indian state separately
• Regulate working hours, establishment timings and overtime.
• Contain general provisions relating to cleanliness, ventilation, etc.
• Special exemptions required for women to work in night shift
Overview of Workplace Health and Safety Legislations in
India
General Statutes
Electricity Act 2003: Consumers must also adhere to some safety requirements -
• Factories with a large load must designate an Electrical Safety Officer
• Owners/occupiers of high rise buildings responsible to prevent danger due to
shock and fire hazards
• Safety measures to be followed by consumers associated with
switchboards/conductors
• Any electrical installation, repair, etc. must be carried out through licensed
contractors.
Municipal Regulations: State specific regulations. For e.g. in Bangalore, after
Carlton Tower fire, stronger fire safety measures were notified –
• No Occupancy Certificate to be given for a building unless fire safety
mechanisms are adhered
• Fire Safety Certificate renewal required every 2 years
• Owner to get inspection done every 2 years
• Fire Safety Measures in National Building Code of India adopted by various
states
• Tenants to ensure adequate contractual safeguards in any lease agreement
The Rights of Persons with Disabilities Act, 2016:
• Recently notified
• Extends to private establishments as well
• Organizations must publish an equal opportunity policy
• Establishments with 20 or more employees must appoint a liaison officer to
supervise recruitment of PwD and provision of requisite facilities
• Adhere to standards of accessibility relating to physical environment, transport,
IT and communication.
Employee’s Compensation Act, 1923:
• Provides for compensation for injury or death arising “during the course of
employment”.
• Classifies injuries and compensation on severity - Death, Permanent Total
Disablement, Permanent Partial Disablement. Temporary Disablement whether
total or partial (more than 3 days), Contracted Occupational diseases
• Compensation calculated on monthly wages of the employee and the loss of
earning capacity (in case of injury). Subject to certain statutory caps.
• Employer liable to bear expenses of medical treatment in some circumstances.
• Payments must be deposited with the jurisdictional authority.
Director’s Liability For Health & Safety Violations
Assessment of director liability can vary based on statute and circumstances involved
FACTORIES ACT, 1948 .
Only a director can be an occupier and not another nominee/employee.
Director being ignorant about the management of factory cannot absolve him.
No Mens Rea needed - Beneficial social defence legislation which creates strict liability
J.K Industries v. Chief Inspector of Factories and Boilers and Ors.
K.D. Diwan and Ors. v The State of Jharkhand
ELECTRICITY ACT, 2003
Charges against the director filed for electrocution of an
employee due to violation of Indian Electricity Rules.
S. 149 – “Where an offence under this Act has been committed by
a company, every person who at the time the offence was
committed was in charge of and was responsible to the company
for the conduct of the business of the company.”
Finding – Vicarious liability to
be imputed against the director
only with the requisite allegation
of director being involved in
day-to-day management.
INDIAN PENAL CODE, 1860
.• Release of dangerous gas from Union
Carbide Factory, leading to thousands of
deaths.
• Keshub Mahindra, a non-executive
director and Chairman, imputed for death
by criminal negligence among other
accused.
Finding –
• Negligence is imputed on directors due to the
long chain of circumstances of negligence in
the plant.
• Clear knowledge with accused that omissions
and neglect could lead to such accidents.
• Director being unrelated to the direct causing of
the gas leak and not dealing with safety aspect
is not valid argument.
State of M.P. Through CBI v Warren Anderson and Ors (Bhopal Gas Leak case)
Sushil Ansal and Ors. v State of Delhi (Uphaar Cinema Case)
59 people died in a fire in
a cinema theatre.
Charges framed against
the ex-directors among
other accused.
Finding –
Liability for death by criminal negligence as:
• Varied safety rules violated – Extra Seats added, Closing of exits,
gangways and balcony, no speedy exit.
• Ex-directors were convicted as it was proved that:
o They took crucial decisions relating to these defects years
back.
o They still controlled the company and had varied powers.
SHOPS AND ESTABLISHMENT ACTS – Varying verbiage in each state legislation
S. 35 – “If the person contravening any provision ……. is
a company ……………..every director, ….. shall, unless
he proves that the contravention took place without his
knowledge or that he exercised all due diligence to prevent
such contravention, be deemed to be guilty of such
contravention.”
Badri Prasad Gupta and Ors. v The State of Bihar and Anr.
However, in contrast under the Delhi S&E Act, 1954, the verbiage differs and thus, no such deeming
fiction exists. It was held under Union of India v. S.P. Agarwal and Ors that:
• No charge can be framed against a director till it is shown that he
was in charge;
• Responsible for the conduct of business; (Exception: Unless he is
the notified ‘Occupier’)
• Once offence against company is
established, deeming fiction of
vicarious liability is laid on the
directors and charges are framed.
• Burden on proof on directors to
establish absence of knowledge
or diligent actions thereof.
Questions & Answers
Conclusions and Wrap Up
Contact Our Speakers for More Information
Carl Blake
Simpson Grierson
Auckland, New Zealand
+64 9 977 5163
Marie Costa
Corrs Chambers Westgarth
Melbourne, Australia
+61 3 9672 3000
Jenny Tsin
Wong Partnership
Singapore
+65 6416 8110
Vivien Yui
Wong Partnership
Singapore
+65 6416 8110
Cynthia Chung
Deacons
Hong Kong
+852 2825 9297
Reena Enbasegaram
Shearn Delamore & Co.
Kuala Lumpur, Malaysia
+603 2027 2727
Atul Gupta
Trilegal
Bangalore, India
+ 91 80 4343 4646
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